In back-to-back decisions issued this week, the Board overruled its prior decisions on three high-profile, controversial issues (with an expectation of more to come), including: employer confidentiality rules for workplace investigations, the use of employer e-mail systems for protected concerted activity, and obligations to continue “checking off” union dues after the expiration of a labor agreement.
- In Unique Thrift Store, 368 NLRB No. 144 (2019), the Board overturned a 2015 decision (Banner Estrella Medical Center) that had effectively barred employers from requiring “confidentiality” of workplace investigations, even in situations involving sensitive issues like sexual harassment that are covered not by the National Labor Relations Act, but by various employment anti-discrimination laws. Under Banner Estrella, employers were required to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality, which was practically impossible to do. Under the new standard, the Board ruled that investigative confidentiality rules limited to the duration of the investigation are presumptively lawful.
- In Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), the Board overturned its highly controversial 2014 decision in Purple Communications, Inc. In Purple Communications, the Board had held that employees with access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for union-related activities. This week’s Rio All-Suites decision effectively reinstates the holding of an earlier Board decision (Register Guard) and re-establishes employers’ rights to restrict the use of their email systems (on a nondiscriminatory basis).
- In Valley Hospital Medical Center, 368 NLRB No. 139 (2019), the Board overruled a 2015 decision (Lincoln Lutheran of Racine) that addressed an employer’s dues checkoff obligations during the hiatus between labor agreements. Valley Hospital restores a precedent that had been in place since the Board’s decision in Bethlehem Steel in 1962. Under the longstanding (and now revived) standard, an employer’s statutory obligation to “check off” union dues ends upon expiration of the collective-bargaining agreement containing the checkoff provision.
This week’s decisions come in the last days of Board Member Lauren McFerran’s term, which ended on December 16, 2019. McFerran – an Obama-era holdover and the Board’s last remaining Democrat – became a fervent and vocal dissenter as the Board’s majority discarded multiple initiatives of the Obama-era Board. Many of the precedents targeted by the Board’s three Republican members – William J. Emanuel, Marvin E. Kaplan, and Chairman John Ring – were themselves major departures from years (and even decades) of Board law.
The Board’s decisions this week will undoubtedly have a substantial and far-reaching impact for both employers and employees. However, these seismic shifts in Board precedent were not entirely unexpected. In December 2017, the Board’s newly-installed General Counsel Peter Robb signaled in a “General Counsel Memorandum” (No. 18-02) that the Board might be seeking an “alternative analysis” of any number of controversial precedents – including the three decisions that the Board overruled this week. There are still numerous controversial cases on G.C. Robb’s list, so further developments in federal labor law may be on the horizon in 2020.
The Board commonly releases a string of significant decisions during the final weeks of the calendar year, particularly when (as here) a member’s term is about to expire. Two years ago (as then Board Chairman Philip Miscimarra’s term was about to end), the Board issued its landmark decisions in Boeing 365 NLRB 10 No. 154 (2017) (adopting a new balancing test for the lawfulness of employer work rules) and the ill-fated Hy-Brand Industrial Contractors, Ltd. 365 NLRB No. 156 (2017) (reinstating the historical test for joint employer status). Hy-Brand was later vacated by the Board after an inspector general report that faulted Board member Emanuel for his participation on the case. The Board turned to formal rulemaking to address the joint-employer issue instead, and it is widely expected to issue a Final Rule on joint employment in the coming weeks (all-but certain to be a carbon-copy of the defunct Hy-Brand standard).
Zashin & Rich Co., L.P.A. will continue to monitor new developments as the Board wrangles with challenging issues that affect day-to-day labor-management for our clients. If you have any questions about the Board’s recent decisions on confidentiality rules, e-mail systems, or dues deductions, please contact our offices in Cleveland (George Crisci gsc@zrlaw.com) and Columbus (Jonathan Downes jjd@zrlaw.com).